MUHAMMAD RAZA KHAN (MEMBER).----This judgment will also dispose of appeal No, 137(K)196 because identical questions of law and facts are involved.
2. The appellants joined initially as LDC (B-5) in 1980 and 1981 respectively. They were later promoted in due course to the post of UDC (B-7). In addition to the normal channel of promotion, the ministerial staff working in the Customs Department are also eligible for promotion to the post of Preventive Officers, etc. in the Customs Department after appearing in the departmental promotional examination. There are two set of rules governing the situation and relevant for discussion in the present appeals. The first one are the Rules promulgated in 1977 where under the ministerial staff was considered eligible for promotion as Preventive Officers and the Examining Officers on certain conditions. The Graduates were allowed to appear in the examination without the pre-condition of length of service whereas the UDCs were required to have two years' service and the LDCs to have 5 years continuous service. These rules were amended for the post of Preventive Officers only, in the year 1980 whereby length of service was required to be 5 years in Grade 11 and above and 7 years' service in Grade 5 and above for all the ministerial staff irrespective of the qualifications. Allegedly, these Rules of 1980 were followed while making promotions in 1985 and 1989. One of the appellants had applied for permission to appear to the said examination in 1989 but this request was rejected on the ground of insufficient length of service. However, in 1991 another examination was to be held and a notification was issued on 8-8- 1991 in these words: "It is notified for the information of all concerned that a departmental promotion examination for the post of Preventive Officer will be held on 26th and 28th of September, 1991 from 4 p.m. to 6 p.m. in accordance with S.R.O. 58(1)/77, dated 18-1-1977. The following ministerial staff are eligible to apply:
(i) Stenotypists/UDCs/LDCs who are graduate.
(ii) In case of non-graduate staff: Stenotypists/UDCs have 2 years continuous service as Steno/UDC on the date of examination.
(iii)In case of non-graduate staff: LDCs have 5 years continuous service as LDC on the date of examination.
(2) All those who are eligible are directed to apply on the prescribed application forms available in the Establishment Preventive Section not later than 25th August, 1991.
(3) Application forms received after due date will not be entertained in any case."
Both the appellants, the private respondents and several other members of the ministerial staff participated in the examination and, consequently, the partial result was announced on 7-12-1991 wherein both the appellants were declared successful, whereas the result of other candidates was with-held, mainly on the ground that a clarification had been sought from the Revenue Division and the result will be declared after the availability of such clarification. Such clarification was required with regard to the applicability of Rules of 1977 or that of 1980. It appears that the clarification was subsequently, received from the Revenue Division vide Telex dated 1-1-1992 whereby the Collector of Customs. (Preventive) Karachi was advised to take necessary action in the matter in accordance with the laid down Rules under SRO of 1980. Aggrieved by this clarification of the Central Board of Revenue, a Constitutional petition was filed by four UDCs of the group whose result was withheld. This Constitutional petition was dismissed on 7-7-1992, in limine, primarily on the ground of jurisdiction. Thereafter, all the said four appellants filed appeals Nos. 68 to 71 (K)/92 and by judgment dated 4-7-1993, all the appeals were dismissed on the ground of limitation and maintainability for not having filed departmental representation. Two other officials filed appeals Nos. 87 and 88(K)/93 and vide judgment dated 28-7-1993 this Tribunal dismissed the said appeals as well as the ground of limitation. The said appellants did not succeed even in the Supreme Court as the leave was not granted vide order dated 1-12-1993.
3. It appears that in 1994, the Collector of Customs, (Preventive) Karachi, initiated a proposal asking for the clarification of the Revenue Division with regard to the applicability of SRO of 1977 and SRO of 1980 with regard to the requirement of length of service for promotion to the post of Preventive Officer. This proposal was based on a reasoning that initially the post of Preventive Officer was in a lower scale for which the less length of service was required. However, with the up gradation of the post, the length of service required for promotion was increased, but in the meanwhile, the post had been down-graded and hence, the required length of service may also be presumed to be reduced. Apart from the merits of the case, we may observe here that the said letter had two defects. Firstly, there was an intentional miss-representation that the post was initially in BPS-11 which was upgraded to BPS-13 and downgraded to BPS-11 again. In fact, the post was initially in BPS-10 which was upgraded to BPS-13 and it was downraded to BPS-11. We take notice of this omission as misrepresentation for the reason that a general impression created by the said letter is that since the post has been down-graded to its original position, therefore, the suggestion of reduction in length of service was justified whereas the fact of the matter is that the post was never down-graded to its original scale. The second defect in the said letter was that the officer, initiating the said letter, had presumed that with the down-grading of the scale, the other conditions may also be presumed to have been reduced. This is a legal misunderstanding. Rules, having status of subordinate legislation can neither be assumed nor presumed but they are to be interpreted in their letter and spirit. The said letter also contains another narration that his predecessor in office had decided to accept the demand of the Union and, consequently, declared the earlier rules (not then in force) as the basis for holding the examination. This decision based on the pressure of Union has resulted in issuance of letter dated 8-8-1991 and this resulted in all these rounds of litigation. Had the said officer complied with the rules in force, the present litigation could have been avoided and instead of quoting incorrect Rule in the circular, he could have initiated a case for amendment of the Rules, if he considered the same desirable.
4. Irrespective of the observations contained in the preceding paragraph with regard to the letter dated 7-7-1994 and the decision dated 8-8-1991, the fact of the matter is that the letter dated 7-7- 1994 was responded by the Central Board of Revenue in these words: ..The matter was taken up with the Establishment Division. That Division has given the following advice:- "The request has been examined in the Establishment Division and it is held that the prescribed condition of 7 years service as LDC/UDC for the promotion to the post of Preventive Officer is to be fulfilled by the persons concerned at the time of consideration by the Departmental Promotion Committee."
You are requested to take action in the light of Establishment Division advice mentioned above under intimation to the Board immediately."
This clarification was issued on 1-11-1994 and just on the next day i,e, 2-11-1994, the with-held result was announced. The appellant Nisar Ahmed filed Appeal No, 150(K)/94. However, the same was disposed of vide judgment dated 1-1-1995, with the direction to respondent department to finalize the seniority list of the UDCs within a period of three months. Instead of proceeding further to finalize the seniority list, the department issued the promotion orders on 19-2-1996 whereby 19 officials were promoted as Preventive Officers. The appellant, Nisar Ahmed, filed departmental appeal on 19-3-1996 and failing to get any response thereto, he filed the present service appeal on 10-7-1996. It may also be mentioned 'that in the intervening period, the respondents had also issued another order dated 22-6-1996 whereby 10 officials were so promoted including one Rana Ghulam Shabbir, who was one of the appellants in the previous round of litigation before us.
Without filing any departmental appeal against the said order, the appellant has challenged this promotion order as well as in the present service appeal.
5. The respondent department as well as some of the private respondents contested the appeals by filing objections/'parawise comments. In the objections, the respondents have justified the promotion orders and have challenged the maintainability of the present appeals on the ground of limitation as well as stating that there was no order adverse to the terms and conditions of the appellants. Some of the private respondents have also denied the alleged seniority of the appellants. It was also stated that the promotion cannot be demanded in service appeals.
6. Before proceeding further to discuss the merits of the case, it may be appropriate to recapitulate that under the rules of 1977, there was no requirement for length of service to a Graduate member of the ministerial staff whereas it was two years for the Stenographers and UDCs and 5 years for Steno typists and the LDCs. The relevant portion of the rules is reproduced as follows: Name of Post: Person eligible: Conditions for eligibility: Preventive Officer and Examiner of Customs House.Ministerial officials namely Stenographers, U.D. Clerks, Stenotypists and L.D. Clerks in the Customs HouseThe ministerial officials musts:--
(i) be Graduates or
(ii) be non-graduates having the following service at their credit:-- Stenographers: 2 years U.D. Clerks : Stenotypists : L.D. Clerks: 5 years
(iii) have qualified the Departmental promotion examination the syllabus, for which has been prescribed in the Customs Manual and modified or amended from time to time.
(iv) The minimum pass marks in each paper will be 50%. Grace marks upto 10% in one paper will be allowed provided the candidate secures in the aggregate at least 50% marks in all the papers."
This Rule was later on amended in 1980 and it is also reproduced herein below: Preventive Officer. Ministerial officials namely Stenographers Stenotypists, U.D.
Clerks, L.D. Clerks of the Customs House.The ministerial officials must have:
(i) 5 years service in grade 11 and above.
(ii) 7 years service in grade 5 and above.
Although there is no provision in the rules of 1980 that the earlier rules of 1977 have been repealed but the earlier rules will be presumed to have been repealed for the reason that the competent authority has passed and circulated the rules and the Rules that are later in time shall prevail over the Rules that were earlier in time. It may also be stated that the Rules of 1977 also related to the post of Examiner as well but the Rules of 1980 were with regard to the Preventive Officers only and so far as the post of Examiner is concerned, the Rules of 1977 were still alive. Thus, we hold that after 6-1-1980-the Rules of 1980 were in force and had to be complied with. The respondent department has reiterated the same position both on 1-1-1992 as well as on 1-11-1994 (as will be discussed hereinafter). Thus, there is no ambiguity in both the said letters and it is a fact that the rules of 1977 stood repealed with regard to the promotions for the post of Preventive Officers.
7. The main confusion with the appellants is based on a misconception with regard to length of service required for promotion or for departmental examination. It is a fact that the length of service was certainly required for the promotion to the post of Preventive Officer but it was not at all required for appearing in the departmental examination. That is why the respondents intimated on 1-11-1994 that the prescribed condition of 7 years' service has to be fulfilled by the persons concerned at the time of consideration by Departmental Promotion Committee. This issue is further resolved by a provision contained in the Rule 4 of the Rules of 1980. The basic condition of eligibility for the post of Preventive Officer was 5 and 7 years of service in respect of ministerial staff.
However, it was laid down therein that selection by promotion shall be made on the basis of a written test and recommendations of the DPC. In sub-para (c) of Rule 4, it is further clarified that: "(c) Not more than three chances will be allowed to qualify in such examinations. The candidate who clears a paper or papers in any one of the examination will be exempted from those papers in subsequent examinations. Appointments will be made on the results of that examination in which a candidate qualifies finally and is declared fit by the Departmental Promotion Committee. List of such qualified candidates will be prepared according to their existing Thus, the length of service is not at all required for being a candidate in the departmental examination. Any of the ministerial staff can appear in the departmental examinations and after qualifying the same, he could be considered by the DPC for promotion subject to the condition that the service length as required by the Rules has been completed. Thus, it is wrong to assume that the letter dated 1-11-1994 has confirmed the application of the repealed Rules of 1977 but, in fact, this letters has reconfirmed the Rules of 1980 and clarified in its true spirit. It is correct that the reference to the Rules of 1977 in the letter dated 8-8-1991 was based on misconception or it may be considered as a typographical mistake but the true interpretation of the Rules of 1980 is that all the ministerial staff had to appear in the departmental examination irrespective of their educational qualifications and after being successful in one or more chances upto a maximum of three chances, the successful candidates were to be placed before the DPC for promotion where the minimum length of service will have to be kept in view and the successful candidates of one examination will be promoted before any other such examination was held. The result of all the participants has been declared and the promotion to the post of Preventive Officer will be on the basis of consolidated result of those whose result was announced earlier as well as those whose result was with-held, on misconception and declared later. Thus, we hold that the appellants have no case on merits because they cannot demand the cancellation of result of a departmental examination only on the ground of insufficient length of service.
8. With regard to the objection of limitation raised on behalf of the respondents, we agree that the initial cause of action accrued to the appellants in 1991 when the letter dated 6-8-1991 was issued and the repealed Rules of 1977 were stated as the basis for the departmental promotion examination. The appellants should have agitated the issue by seeking appropriate legal remedy at that time. This having not been done and scores of candidates having participated in the examination and having agitated the issue at various forum, the clock cannot be reversed after the passage of six years. All the arguments challenging the vires of certain phrases in the letter dated 8-8-1991 are barred by time and no relief can be extended on such belated issues. Thereafter, the appellants were admittedly a party when the private respondents had agitated the matter for the declaration of their withheld results and, therefore, they should have sought their departmental remedy against the orders dated 1-11-1994 and 2-11-1994 if they were so aggrieved. The earlier litigation by one of the appellants in this behalf culminated in a direction of determination of inter se seniority within the specified time and the said appellant did not bother to take the said judgment to its logical and for the finalisation of seniority. Thus, the letters of November, 1994 cannot be impugned by the present service appeals as time barred. If it is considered that the remedy had already been sought against the said letters vide Appeal No, 150(K)/94, in that case, the present appeals will be hit by the principle of res judicata.
9. The impugned order dated 19-2-1996 is not challenged on the basis of seniority of the appellants so as to justify the determination of fitness for promotion. The said letter was being challenged on the ground that some of the officials out of the private respondents promoted by the said order were not qualified to appear in the departmental examination and the declaration of their result was illegal. Unless the said two letters of 1991 and 1994 are challenged and set aside by the competent forum, the effect thereof in the form of the impugned letter can never be challenged.
Thus, we hold that the appeals against the order dated 19-2-1996 were not competent on the said ground as well as on the point that promotion cannot be demanded under proviso (b) to section 4(1) of the Service Tribunals Act, 1973.
10.The second order dated 22-6-1996 has not been challenged by departmental appeal.
Although, as stated earlier, there is no merit to impugn the said order but the appeals are not competent under proviso (a) to section 4(1) of the Service Tribunals Act, 1973 so far it relates to the order dated 22-6-1996. Before parting with the judgment, it may also be mentioned that the learned counsel for the appellants have vehemently argued the principle of locus poenitentiae on the ground that the Rules of 1980 were not only in force but were constantly in practice in the examination of 1985 and 1989 and, therefore, the established practice cannot be ignored as per law laid down by the superior Courts. In support of this argument, the learned counsel has referred to a letter dated 16-2-1989 whereunder his candidature for the departmental promotion examination of 1988 was refused on the ground of having less than 7 years service. This was a solitary example and cannot be quoted as a constant practice. The present appellants have certainly completed more than 7 years of service in 1988 and 1989 and, therefore, if the said letter was issued to any one of them, they could have challenged the same on merits. Any incorrect interpretation of a Rule by a department in a solitary case earlier cannot be cited as a display of general practice. However, we may reiterate that the Rules are very clear and the required minimum length of service was for the purpose of actual promotion to the higher posts and not for the purpose of appearing in the departmental promotion examination and, as such, any decision like the one dated 16-2-1989 will be contrary to Rules, but such an illegal precedent cannot be quoted to perpetuate another illegality in future.
11.In view of the above discussion, we are of the opinion that the clarification issued by the respondents on 1-11-1994 was the correct interpretation of Rules and the with-held result was correctly declared. The same cannot be challenged at this stage and consequently we do not find any force in these appeals which are hereby dismissed. However, it may be mentioned that since the result of all the candidates has been declared, the promotions may be made to the vacancies as and when available, strictly in accordance with the provisions of Rules notified vide SRO 26(1)/80, dated 6-1-1980. No order is made for costs.